Oral Arguments In Gerrymandering Case Reveal The Quagmire Faced By The Supreme Court

People wait in line to attend the first day of the fall session of the U.S. Supreme Court, on Monday in Washington, D.C. (Photo by Mark Wilson/Getty Images)

The Supreme Court tackled a gerrymandering case out of Wisconsin on Tuesday that could have a revolutionary impact on how legislative districts are drawn up for years to come. Like many of the hyper-partisan cases before the Court, the justices' comments during oral arguments generally broke down along ideological lines in one of the thorniest issues the judicial body has ever encountered.

"What criteria would a state need to know in order to avoid having every district and every case and every election subject to litigation," Justice Neil Gorsuch asked, echoing one of the primary arguments against judicial intervention even with highly distorted legislative maps.

Though speaking to one of the advocates, Justice Ruth Badger Ginsburg offered a rebuttal to Gorsuch. Highlighting the democratic stakes involved in allowing legislatures to game the political process, she asked: "if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it's a Democratic district or a Republican district, the result -- using this map, the result is preordained in most of the districts."

Named after Elbridge Gerry, the Massachusetts Governor who tried to gain a partisan edge by redistricting the state legislature in 1812, gerrymandering is as old as the Republic. It's one of the few dark arts within politics openly embraced by politicians. Even as critics bemoan its anti-democratic nature and its contribution to the emergence of ideologically extremist candidates, gerrymandering has endured.

While gerrymandering has been practiced by both parties over the years, the use of sophisticated computer modeling systems and the ability to keep track of voters on a granular level has allowed state legislators to extend the traditional advantages offered to the party drawing up legislative districts to new extremes.

The case before the Court, Gill v. Whitford, exemplifies this new, supercharged version of an age-old practice. When Republicans took control of the Wisconsin state legislature in 2010, their reapportionment of the state assembly paved the way for them to win up to 60 of the chamber's 99 seats in later elections. "They created three or four more maps," Justice Sonia Sotomayor said to Wisconsin's Solicitor General, Misha Tseytlin, early on in Tuesday's proceedings. "And they finally ... achieved a map that was the most partisan."

In each of these elections since 2012, however, Democratic candidates received more votes than their Republican counterparts on an aggregate level. "You know, the world of voting technology has changed a great deal," Justice Elena Kagan observed, "and when legislatures think about drawing these maps, they're not only thinking about the next election, they're thinking often... about the election after that and the election after that."

By handing a legislative body to a party that has garnered a minority of voters in election after election, Gill has become the poster child for abusive gerrymandering. There is no easy fix. No matter how outlandish Wisconsin's legislative map may look to critics, it will take a sweeping change in the law not seen in a half century to set aside the state legislature's handiwork.

In a series of rulings in the 1960s, the Supreme Court mandated the one-person, one-vote standard requiring legislative districts both at the federal and state level to have equal sized populations. Prior to these rulings, rural districts were heavily over-represented as state governments refused to re-calibrate their districts over a period of many decades. These distorted districts spread like a pox across the nation, infecting liberal and conservative states from every region. Some of the examples of malapportioned districts from the era violate any sense of fairness. With a population of 791, Colebrook, Connecticut had the same number of state representatives as Hartford’s population of 162,178. Los Angeles County, with a population of 6,038,771, had the same number of state senators as a California district with 14,294 residents. Legislative districts ranged from 13,050 to 556,326 in Georgia, 915 to 93,460 in Idaho, and 3,868 to 331,755 in Arizona to name some examples.

Like the current case out of Wisconsin, the geographic gerrymandering addressed by the Court in the 1960s also brandished a long pedigree and was considered a political issue beyond the reach of the judiciary. Legislatures had become so warped, however, the liberal bloc within the Court broke with decades of precedent to step in and correct the problem.

Having addressed geographic malapportionment, the justices also scrutinized redistricting plans that might dilute the impact of minority voters over the years.

They have been unwilling to take on partisan gerrymandering, however, largely due to the same arguments that were long espoused to defend malapportioned districts prior to the 1960s: the combination of partisan gerrymandering's long history and the fact that it is practiced by both parties has endowed it with an air of legitimacy in political circles. The other defense of the practice hinges on the proper role of the judiciary vis-à-vis its sister branches. The state legislatures - not the federal judiciary - are ideally situated to institute redistricting reform. In line with this last point, the Supreme Court has been reluctant to act in an arena it considers "nonjusticiable."

One additional roadblock has stood in the way of judicial intervention: even if the Court elected to curb gerrymandering, just how would it go about it?

The lack of a workable standard to determine what would constitute a constitutionally viable gerrymandered legislative map versus one that violates the Constitution has made the justices reluctant to step into the breach.

The Court came close to addressing the issue in a 2004 case - Vieth v. Jubelirer - that might shed light on how one justice in particular, Anthony Kennedy, the center-right jurist often considered the swing vote in a Court otherwise divided evenly among liberals and conservatives, might view Gill.

In his concurring opinion in Vieth, Kennedy reaffirmed the difficulty of overcoming the traditional obstacles for judicial intervention but left the door open for future action. "In my view," he wrote, "these arguments are not so compelling that they require us now to bar all future claims of injury of a partisan gerrymander."

"Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims," Kennedy added, linking the cases from the 1960s to the last bulwark of gerrymandering left untouched by the Court, "makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering."

The plaintiffs in Gill, a group of Democrats, might be able to provide Kennedy with a workable template. They prevailed before a federal district judge by pointing to a theory called the efficiency gap. A new tool developed using social science principles and backed by data-driven analysis, the efficiency gap showed that Wisconsin's current Assembly map was among the most partisan ever constructed in the nation.

As the case made its way to the Supreme Court, dozens of advocacy groups and academics have offered additional methods the justices could use to establish workable standards.

Justice Stephen Breyer seemed to hint at a potential solution when he offered a complicated multi-part test a federal court could apply to measure the constitutional integrity of a legislative map. "Now, I suspect that that's manageable," he said at the end of his hypothetical test.

Chief Justice John Roberts, on the other hand, mocked the overly convoluted roadmaps relying on obscure statistical formulas offered to the justices. "And if you're the intelligent man on the street and the Court issues a decision," he stated during oral arguments, "and let's say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that's a bunch of baloney."